THE order of our diftribution will next lead us to take into confideration fuch crimes and mifdemefnors as more efpecially affect the common-wealth, or public polity of the kingdom: which however, as well as thofe which are peculiarly pointed againft the lives and fecurity of private fubjects, are alfo offences againft the king, as the pater-familias of the nation; to whom it appertains by his regal office to protect the community, and each individual therein, from every degree of injurious violence, by executing thofe laws, which the people themfelves in conjunction with him have enacted; or at leaft have confented to, by an agreement either expreffly made in the perfons of their reprefentatives, or by a tacit and implied confent perfumed and proved by immemorial ufage.

THE fpecies of crimes, which we have now before us, is fubdivided into fuch a number of inferior and fubordinate claffes, that it would much exceed the bounds of an elementary treatife, and be infupportably tedious to the reader, were I to examine them all minutely, or with any degree of critical accuracy. I fhall therefore confine myfelf principally to general definitions or defcriptions of this great variety of offences, and to the punifhments inflicted by law for each particular offence; with now and then a few incidental obfervations: referring the ftudent for
more
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more particulars to other voluminous authors; who have treated of thefe fubjects with greater precifion and more in detail, than is confiftent with the plan of thefe commentaries.

THE crimes and mifdemefnors, that more efpecially affect the common-wealth, may be divided into five fpecies; viz. offences againft public juftice, againft the public peace, againft public trade, againft the public health, and againft the public police or oeconomy: of each of which we will take a curfory view in their order.

FIRST then, of offences againft public juftice: fome of which are felonious, whofe punifhment may extend to death; others only mifdemefnors. I fhall begin with thofe that are moft penal, and defcend gradually to fuch as are of lefs malignity.

1. IMBEZZLING or vacating records, or falfifying certain other proceedings in a court of judicature, is a felonious offence againft public juftice. It is enacted by ftatute 8 Hen. VI. c. 12. that if any clerk, or other perfon, fhall willfully take away, withdraw, or avoid any record, or procefs in the fuperior courts of juftice in Weftminfter-hall, by reafon whereof the judgment fhall be reverfed or not take effect; it is felony not only in the principal actors, but alfo in their procurers, and abettors. Likewife by ftatute 21 Jac. I. c. 26. to acknowlege any fine, recovery, deed enrolled, ftatute, recognizance, bail, or judgment, in the name of another perfon not privy to the fame, is felony without benefit of clergy. Which law extends only to proceedings in the courts themfelves: but by ftatute 4 W. & M. c. 4. to perfonate any other perfon before any commiffioner authorized to take bail in the country is also felony. For no man's property would be fafe, if records might be fuppreffed or falfified, or perfons' names be falfely ufurped in courts, or before their public officers.

2. TO
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2. To prevent abufes by the extenfive power, which the law is obliged to repofe in gaolers, it is enacted by ftatute 14 Edw. III. c. 10. that if any gaoler by too great durefs of imprifonment makes any prifoner that he hath in ward, become an approver or an appellor againft his will; that is, as we fhall fee hereafter, to accufe and turn evidence againft fome other perfon; it is felony in the gaoler. For, as fir Edward Coke a obferves, it is not lawful to induce or excite any man oven to a juft accufation of another; much lefs to do it by durefs of imprifonment; and leaft of all by a gaoler, to whom the prifoner is committed for fafe cuftody.

3. A THIRD offence againft public juftice is obftructing the execution of lawful procefs. This is at all times an offence of a very high and prefumptuous nature; but more particularly fo, when it is an obftruction of an arreft upon criminal procefs. And it hath been holden, that the party oppofing fuch arreft becomes thereby particeps criminis; that is, an acceffory in felony, and a principal in high treafon b. Formerly one of the greateft obftructions to public juftice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent perfons affembled together to fhelter themfelves from juftice, (efpecially in London and Southwark) under the pretext of their having been antient palaces of the crown, or the like c: all of which fanctuaries for iniquity are now demolifhed, and the oppofing of any procefs therein is made highly penal, by the ftatutes 8 & 9 W. III. c. 27. 9 Geo. I. c. 28. and 11 Geo. I. c.22. which enact, that perfons oppofing the execution of any procefs in fuch pretended privileged places within the bills of mortality, or abufing any officer in his endeavours to execute his duty therein, fo that he receives bodily hurt, fhall be guilty of felony, and tranfported for feven years.

.{FS}a 3 Inft. 91.b 1 Hawk. P. C. 121.c Such as White-Friers, and it's environs; the Savoy; and the Mint in Southwark.
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4. AN efcape of a perfon arrefted upon criminal procefs, by eluding the vigilance of his keepers before he is put in hold, is alfo an offence againft public juftice, and the party himfelf is punifhable by fine or imprifonment d. But the officer permitting fuch efcape, either by negligence or connivance, is much more culpable than the prifoner; the natural defire of liberty pleading ftrongly in his behalf, though he ought in ftrictnefs of law to fubmit himfelf quietly to cuftody, till cleared by the due courfe of juftice. Officers therefore who, after arreft, negligently permit a felon to efcape, are alfo punifhable by fine e; but voluntary efcapes, by confent and connivance of the officer, are a much more ferious offence: for it is generally agreed that fuch efcapes amount to the fame kind of offence, and are punifhable in the fame degree, as the offence of which the prifoner is guilty, and for which he is in cuftody, whether treafon, felony, or trefpafs. And this, whether he were actually committed to gaol, or only under a bare arreft f. But the officer cannot be thus punifhed, till the original delinquent is actually found guilty or convicted, by verdict, confeffion, or outlawry, of the crime for which he was fo committed or arrefted: otherwife it might happen, that the officer might be punifhed for treafon or felony, and the perfon arrefted and efcaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprifoned for a mifdemefnor g.

5. BREACH of prifon by the offender himfelf, when committed for any caufe, was felony at the common law h: or even confpiring to break it i. But this feverity is mitigated by the ftatute de frangentibus prifonam, 1 Edw. II. which enacts, that no perfon fhall have judgment of life or member, for breaking pri-

6. RESCUE is the forcibly freeing another from an arreft or imprifonment; and is always the fame offence in the ftranger fo refcuing, as it would have been in the party himfelf to have broken prifon l. A refcue therefore of one apprehended for felony, is felony; for treafon, treafon; and for a mifdemefnor, a mifdemefnor alfo. But here, as upon voluntary efcapes, the principal muft firft be attainted before the refcuer can be punifhed: and for the fame reafon; becaufe perhaps in fact it may turn out that there has been no offence committed m. By the ftatute, 16 Geo. II. c. 31. to affift a prifoner in cuftody for treafon or felony with any arms, inftruments of efcape, or difguife, without the knowlege of the gaoler; or any way to affift fuch prifoner to attempt an efcape, though no efcape be actually made, is felony, and fubjects the offender to tranfportation for feven years. And by the ftatutes 25 Geo. II. c. 37. and 27 Geo. II. c. 15. to refcue, or attempt to refcue, any perfon committed for murder, or for any of the offences enumerated in that act, or in the black act 9 Geo. I. c. 22. is felony without benefit of clergy.

7. ANOTHER capital offence againft public juftice is the returning from tranfportation, or being feen at large in Great Britain before the expiration of the term for which the offender was fentenced to be tranfported. This is made felony without

8. AN eighth is that of taking a reward, under pretence of helping the owner to his ftolen goods. This was a contrivance carried to a great length of villainy in the beginning of the reign of George the firft: the confederates of the felons thus difpofing of ftolen goods, at a cheap rate, to the owners themfelves, and thereby ftifling all farther enquiry. The famous Jonathan Wild had under him a well difciplined corps of thieves, who brought in all their fpoils to him; and he kept a fort of public office for reftoring them to the owners at half price. To prevent which audacious practice, to the ruin and in defiance of public juftice, it was enacted by ftatute 4 Geo. I. c. 11. that whoever fhall take a reward under the pretence of helping anyone to ftolen goods, fhall fuffer as the felon who ftole them; unlefs he caufe fuch principal felon to be apprehended and brought to trial, and fhall alfo give evidence againft him. Wild, upon this ftatute, (ftill continuing in his old practice) was at laft convicted and executed.

9. RECEIVING of ftolen goods, knowing them to be ftolen, is alfo a high mifdemefnor and affront to public juftice. We have feen in a former chapter n, that this offence, which is only a mifdemefnor at common law, by the ftatutes 3 & 4 W. & M. c. 9. and 5 Ann. c. 31. makes the offender acceffory to the thefe and felony. But becaufe the acceffory cannot in general be tried, unlefs with the principal, or after the principal is convicted, the receivers by that means frequently eluded juftice. To remedy which, it is enacted by ftatute 1 Ann. c. 9. and 5 Ann. c. 31. that fuch receivers may ftill be profecuted for a mifdemefnor, and punifhed by fine and imprifonment, though the principal felon be not before taken, fo as to be profecuted and convicted. And, in cafe of receiving ftolen lead, iron, and certain other metals, fuch offence is by ftatute 29 Geo. II. c. 30.

.{FS}n See pag. 38.
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punifh-
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punifhable by tranfportation for fourteen years o. So that now the profecutor has two methods in his choice: either to punifh the receivers for the mifdemefnor immediately, before the thief is taken p; or to wait till the felon is convicted, and then punifh them as acceffories to the felony. But it is provided by the fame ftatutes, that he fhall only make ufe of one, and not both o thefe methods of punifhment. By the fame ftatute alfo 29 Geo. II. c. 30. perfons having lead, iron, and other metals in their cuftody, and not giving a fatisfactory account how they came by the fame, are guilty of a mifdemefnor and punifhable by fine or imprifonment.

10. OF a nature fomewhat fimilar to the two laft is the offence of theft-bote, which is where the party robbed not only knows the felon, but alfo takes his goods again, or other amends, upon agreement not to profecute. This is frequently called compounding of felony, and formerly was held to make a man an acceffory; but is now punifhed only with fine and imprifonment q. This perverfion of juftice, in the old Gothic conftitutions, was liable to the moft fevere and infamous punifhment. And the Salic law latroni eum fimilem habuit, qui furtum celare vellet, et occulte fine judice compofitionem ejus admittere r. By ftatute 25 Geo. II. c. 36. even to advertife a reward for the return of things ftolen, with no queftions afked, or words to the fame purport, fubjects the advertifer and the printer to a forfeiture of 50 l. each.

11. COMMON barretry is the offence of frequently exciting and ftirring up fuits and quarrels between his majefty's fubjects, either at law or otherwife s. The punifhment for this offence, in a common perfon, is by fine and imprifonment: but if the offender (as is too frequently the cafe) belongs to the profeffion

.{FS}o See alfo ftatute 2 Geo. II. c. 28. §. 12. for the punifhment of receivers of goods ftolen by bum-boats, &c. in the Thames.p Fofter. 373.q 1 Hawk. P. C. 125.r Stiernh. de jure Goth. /. 3. t. 5.s 1 Hawk. P. C. 243.
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of
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of the law, a barretor, who is thus able as well as willing to do mifchief, ought alfo to be difabled from practifing for the future t. Hereunto maybe referred an offence of equal malignity and audacioufnefs; that of fuing another in the name of a fictitious plaintiff; either one not in being at all, or one who is ignorant of the fuit. This offence, if committed in any of the king's fuperior courts, is left, as a high contempt, to be punifhed at their difcretion. But in courts of a lower degree, where the crime is equally pernicious, but the authority of the judges no equally extenfive, it is directed by ftatute 8 Eliz. c. 2. to be punifhed by fix months imprifonment, and treble damages to the party injured.

12. MAINTENANCE is an offence, that bears a near relation to the former; being an officious intermeddling in a fuit that no way belongs to one, by maintaining or affifting either party with money or otherwife, to profecute or defend it u: a practice, that was greatly encouraged by the firft introduction of ufes w . This is an offence againft public juftice, as it keeps alive ftrife and contention, and perverts the remedial procefs of the law into an engine of oppreffion. And therefore, by the Roman law, it was a fpecies of the crimen falfi to enter into any confederacy, or do any act to fupport another's lawfuit, by money, witneffes, or patronage x. A man may however maintain the fuit of his near kinfman, fervant, or poor neighbour, out of charity and compaffion, with impunity. Otherwife the punifhment by common law is fine and imprifonment y; and, by the ftatute 32 Hen. VIII. c. 9. a. forfeiture of ten pounds.

13. CHAMPERTY, campi-partitio, is a fpecies of maintenance, and punifhed in the fame manner z: being a bargain with a plaintiff of defendant campun partire, to divide the land or other matter fued for between them, if they prevail at law;

.{FS}t 1 Hawk. P. C. 244.u Ibid. 249.w Dr. & St. 203.x Ff. 48. 10. 20.y 1 Hawk. P. C. 255.z Ibid. 257.
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where-
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whereupon the champertor is to carry on the party's fuit at his own expenfe a. Thus champart, in the French law, fignifies a fimilar divifion of profits, being a part of the crop annually due to the landlord by bargain or cuftom. In our fenfe of the word, it fignifies the purchafing of a fuit, or right of fuing: a practice fo much abhorred by our law, that it is one main reafon why a chofe in action, or thing of which one hath the right but no the poffeffion, is not affignable at common law; becaufe no man fhould purchafe any pretence to fue in another's right. Thefe pefts of civil fociety. That are perpetually endeavouring to difturb the repofe of their neighbours, and officioufly interfering in other men's quarrels, even at the hazard of their own fortunes, were feverely animadverted on by the Roman law: qui improbe coeunt in alienam litem, ut quicquid ex communicatione in rem ipfius redactum fuerit, inter eos communicaretur, loge Tulia de vi privata tenentur b; and they were punifhed by the forfeiture of a third part of their goods, and perpetual infamy. Hitherto alfo muft be referred the provifion of the ftatute 32 Hen. VIII. c. 9. that no one fhall fell or purchafe any pretended right or title to land, unlefs the vendor hath received the profits thereof for one whole year before fuch grant, or hath been in actual poffeffion purchafor and vendor fhall each forfeit the value of fuch land to the king and the profecutor. Thefe offences relate chiefly to the commencement of civil fuits: but

14. THE compounding of informations upon penal ftatutes are an offence of an equivalent nature in criminal caufes; and are, befides, an additional mifdemefnor againft public juftice, by contributing to make the laws odious to the people. At once therefore to difcourage malicious informers, and to provide that offences, when once difcovered, fhall be duly profecuted, it is enacted by ftatute 18 Eliz. c. 5. that if any perfon, informing under pretence of any penal law, makes any compofition without leave of the court, or takes any money or promife from the

.{FS}a Stat. of confpirat. 33 Edw. I.b Ff. 48. 7. 6.
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defendant
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defendant to excufe him (which demonftrates him intent in commencing the profecution to be merely to ferve his own ends, and not for the public good) he fhall forfeit 10 /., fhall ftand two hours on the pillory, and fhall be for ever difabled to fue on any popular or peal ftatute.

15. A CONSPIRACY alfo to indict an innocent man of felony falfely and malicioufly, who is accordingly indicted and acquitted, is a farther abufe and perverfion of public juftice; for which the party injured may either have a civil action by writ of confpiracy, (of which we fpoke in the preceding book c) or the confpirators, for there muft be at leaft two to form a confpiracy, may be indicted at the fuit of the king, and were by the antient common law d to receive what is called the villenous judgment; viz. to lofe their liberam legem, whereby they are difcredited and difabled to be jurors or witneffes; to forfeit their goods and chattels, and lands for life; to have thofe lands wafted, their houfes rafed, their trees rooted up, and their own bodies committed to prifon e. But it now is the better opinion, that the villenous judgment is by long difufe become obfolete; it not having been pronounced for fome ages: but inftead thereof the delinquents are ufually fentenced to imprifonment, fine, and pillory. To this head may be referred the offence of fending letters, threatening to accufe any perfon of a crime punifhable with death, tranfportation, pillory, or other infamous punifhment, with a view to extort from him any money or other valuable chattels. This is punifhable by ftatute 30 Geo. II. c. 24. at the difcretion of the court, with fine, imprifonment, pillory, whipping, or tranfportation for feven years.

16. THE next offence againft public juftice is when the fuit is paft it's commencement, and come to trial. And that is the crime of willful and corrupt perjury; which is defined by fir Edward Coke f, to be a crime committed when a lawful oath is ad-

.{FS}
See Vol. III. pag. 126.d Bro. Abr. t. confpiracy. 28.e 1 Hawk. P. C. 193.f 3 Inft. 164.
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miniftred, in fome judicial proceeding, to a perfon who fwears willfully, abfolutely and falfely, in a matter material to the iffue or point in queftion. The law takes no notice of any perjury but fuch as is committed in fome court of juftice, having power to adminifter an oath; or before fome magiftrate or proper officer, invefted with a fimilar authority, in fome proceedings relative to a civil fuit or a criminal profecution: for it efteems all other oaths unneceffary at leaft, and therefore will not punifh the breach of them. For which reafon it is much to be queftioned how far any magiftrate is juftifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occafion: fince it is more than poffible, that by fuch idle oaths a man may frequently in foro confcientiae incur the guilt, and at the fame time evade the temporal penalties, of perjury. The perjury muft alfo be willful, pofitive, and abfolute; not upon furprize, or the like: it alfo muft be in fome point material to the queftion in difpute; for if it only be in fome trifling collateral circumftances, to which no regard is paid, it is no more penal than in the voluntary extrajudicial oaths before-mentioned. Subornation of perjury is the offence of procuring another to take fuch a falfe oath, as conftitutes perjury in the principal. The punifhment of perjury and fubornation, at common law, has been various. It was antiently death; afterwards banifhment, or cutting out the tongue, then forfeiture of goods; and now it is fine and imprifonment, and never more to be capable of bearing teftimony g. But the ftatute 5 Eliz. c. 9. (if the offender be profecuted thereon) inflicts the penalty of perpetual infamy, and a fine of 40 /. on the fuborner; and, in default of payment, imprifonment for fix months, and to ftand with both ears nailed to the pillory. Perjury itfelf is thereby punifhed with fix months imprifonment, perpetual infamy, and a fine of 20 /. Or to have both ears nailed to the pillory. But the profecution is ufually carried on for the offence at common law; efpecially as, to the penalties before inflicted, the ftatute 2 Geo. II. c. 25. fuper-adds a power, for the court to order the offender to be fent to the

.{FS}g 3 Inft. 163.
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houfe of correction for feven years, or to be tranfported for the fame period; and makes it felony without benefit of clergy to return or efcape within the time. It has fometimes been wifhed, that perjury, at leaft upon capital accufations, whereby another's life has been or might have been deftroyed, was alfo rendered capital, upon a principle of retaliation; as it is univerfally by the laws of Frances h. And certainly the odioufnefs of the crime pleads ftrongly in behalf of the French law. But it is to be confidered, that there they admit witneffes to be heard only on the fide of the profecution, and ufe the rack to extort a confeffion from the accufed. In fuch a conftitution therefore it is neceffary to throw the dread of capital punifhment into the other fcale, in order to keep in awe the witneffes for the crown; on whom alone the prifoner's fate depends: fo naturally does one cruel law beget another. But corporal and pecuniary punifhments, exile and perpetual infamy, are more fuited to the genius of the Englifh law, where the fact is openly difcuffed between witneffes on both fides, and the evidence for the crown may be contradicted and difproved by thofe of the prifoner. Where indeed the death of an innocent perfon has actually been the confequence of fuch willful perjury, it falls within the guilt of deliberate murder, and deferves an equal punifhment: which our antient law in fact inflicted i. But the mere attempt to deftroy life by other means not being capital, there is no reafon than an attempt by perjury fhould: much lefs that this crime fhould in all judicial cafes be punifhed with death. For to multiply capital punifhments leffens their effect, when applied to crimes of the deepeft dye; and, deteftable as perjury is, it is not by any means to be compared with fome other offences, for which only death can be inflicted: and therefore it feems already (except perhaps in the inftance of deliberate murder by perjury) very properly punifhed by our prefent law; which has adopted the opinion of Cicero k, derived from the law of the twelve tables, perjurii poena divina, exitium; humana, dedecus.

.{FS}h Montefq. Sp. L. b. 29. ch. 11.I Britton. c. 5.k de Leg. 2. 9.
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17. BRIBERY is the next fpecies of offence againft public juftice; which is when a judge, or other perfon concerned in the adminiftration of juftice, takes any undue reward to influence his behaviour in his office l. In the eaft it is the cuftom never to petition any fuperior for juftice, not excepting their kings, without a prefent. This is calculated for the genius of defpotic countries; where the true principles of government are never underftood, and it is imagined that there is no obligation from the fuperior to the inferior, no relative duty owing from the governor to the governed. The Roman law, though it contained many fevere injunctions againft bribery, as well for felling a man's vote in the fenate or other public affembly, as for the bartering of common juftice, yet by a ftrange indulgence in one inftance, it tacitly encouraged this practice; allowing the magiftrate to receive fmall prefents, provided they did not in the whole exceed a hundred crowns in the year m: not confidering the infinuating nature and gigantic progrefs of this vice, when once admitted. Plato therefore more wifely, in his ideal republic n, orders thofe who take prefents for doing their duty to be punifhed in the fevereft manner: and by the laws of Athens he that offered was alfo profecuted, as well as he that received a bribe o. In England this offence of taking bribes is punifhed, in inferior officers, with fine and imprifonment; and in thofe who offer a bribe, though not taken, the fame p. But in judges, efpecially the fuperior ones, it hath been always looked upon as fo heinous an offence, that the chief juftice Thorpe was hanged for it in the reign of Edward III. By a ftatute q 11 Hen. IV, all judges and officers of the king, convicted of bribery, fhall forfeit treble the bribe, be punifhed at the king's will, and be difcharged from the king's fervice for ever. And fome notable examples have been made in parliament, of perfons in the

higheft
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higheft ftations, and otherwife very eminent and able, but contaminated with this fordid vice.

18. EMBRACERY is an attempt to influence a jury corruptly to one fide by promifes, perfuafions, entreaties, money, entertainments, and the like r. The punifhment for the perfon embracing is by fine and imprifonment; and, for the juror fo embraced, if it be by taking money, the punifhment is (by divers ftatutes of the reign of Edward III) perpetual infamy, imprifonment for a year, and forfeiture of the tenfold value.

19. THE falfe verdict of jurors, whether occafioned by embracery or not, was antiently confidered as criminal, and therefore exemplarily punifhed by attaint in the manner formerly mentioned s.

20. ANOTHER offence of the fame fpecies is the negligence of public officers, entrufted with the adminiftration of juftice, as fheriffs, coroners, conftables, and the like: which makes the offender liable to be fined; and in very notorious cafes will amount to a forfeiture of his office, if it be a beneficial one t. Alfo the omitting to apprehend perfons, offering ftolen iron, lead, and other metals to fale, is a mifdemefnor and punifhable by a ftated fine, or imprifonment, in purfuance of the ftatute 29 Geo. II. c. 30.

21. THERE is yet another offence againft public juftice, which is a crime of deep malignity; and fo much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal profecution. This is the oppreffion and tyrannical partiality of judges, juftices, and other magiftrates, in the adminiftration and under the colour of their office. However, when profecuted, either by impeachment in parliament,

.{FS}r 1 Hawk. P. C. 259.s See Vol. III. pag. 402.t 1 Hawk. P. C. 168.
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or
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or by information in the court of king's bench, (according to the rank of the offenders) it is fure to be feverely punifhed with forfeiture of their offices, fines, imprifonment, or other difcretionary cenfures, regulated by the nature and aggravations of the offence committed.

22. LASTLY, extortion is an abufe of public juftice, which confifts in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or before it is due u. The punifhment is fine and imprifonment, and fometimes a forfeiture of the office.